One potential problem arises where a TN visa worker’s son or daughter will turn 21 at some point during the proposed extension of TD visa status. This is more likely to happen now that TN visa status, and as consequence TD status, may be extended in three year periods. If only one I-539 application was filed to extend the TN visa worker’s spouse and children’s TD visa status, USCIS will approve the extension of status only up until the day before the son or daughter’s 21^st birthday. This is due to a rule found in 8 C.F.R. § 214.1 (c) (2), which discusses extensions of stay for family members and states that “[t]he shortest period granted to any member of the family shall be granted to all members of the family.” Not only does this scenario require a subsequent extension of status filing for the spouse, it also can lead to serious consequences.

As a general practice, TD dependents should have the same period of authorized stay as the TN visa worker. Anytime a disparity exists between a TN visa worker’s status and his or her family members, the potential for problems looms. For example, if the spouse neglects to file an application to extend his or her TD visa status, the spouse will be considered out of status once his or her I-94 expires. Not only will he or she be subject to removal, but the spouse will need to either go to the border (if Canadian) or to the U.S. consulate (if not Canadian) in order to obtain a new TD. Furthermore, the spouse will start to accumulate unlawful presence six months after the I-94 expires, which can lead to multiple year bars to returning to the U.S.

This problem can be avoided if two I-539 applications are filed: One for the TN visa worker’s spouse, and another for the TN visa worker’s son or daughter who will turn 21 during the proposed extension.

This steady demand may be partly attributed to the unavailability of H-1B visas during this period. Despite the less cumbersome requirements for the TN visa, over 100,000 more H-1B visas were issued by the DOS in 2009. This disparity may be more due to the availabilty of the H-1B visa classification  to more individuals, whereas the TN visa classification is generally limited to citizens of Mexico.

During her absence from the U.S., the applicant’s initial TN visa status had expired. She could therefore not re-enter the U.S. until her I-129 petition was approved. Rather than wait, the applicant applied for a new TN at a U.S. port-of-entry. Despite her prior approval, the inspecting officer refused to issue a TN because the applicant had only provided copies of her I-129 petition paperwork. The officer also questioned the relationship of the applicant’s degree in Polymer Engineering to the Chemist TN visa category. The applicant returned to the port-of-entry with an original, one-page employer letter. The officer refused to issue a TN because the letter was not specific enough and also lacked a salary.

The applicant then contacted our office for assistance with her TN application. We recommended that the employer withdraw its pending I-129 extension of TN status petition, which it did. We then prepared a more detailed employer support letter, which fully described the employer’s business, the applicant’s credentials, job duties, and terms of employment. We also prepared a legal brief explaining how the applicant qualified for TN visa status as a Chemist. We believed the applicant’s education was the more contentious issue with CBP as she did not have a specific degree in Chemistry.

Many inspectors believe that an individual must possess a specific degree in the field to qualify for TN visa status. With one exception, this is not an accurate interpretation of the law. In our brief we explained that the TN visa regulations at 8 C.F.R. § 214.6 (c) did not state what types of degrees were suitable for TN status as a Chemist. We then referred to a legacy INS memo, which stated that the Hotel Manager is the only TN category that requires a specific degree under NAFTA. According to this guidance, all that is required is that “[t]he degree should be in the field or in a closely related field.”

The brief then cited the U.S. Department of Labor’s Occupational Outlook Handbook (“OOH”) to illustrate the types of degrees suitable for a Chemist position. We pointed to specific language in the OOH to support our contention that an individual with a degree in Engineering could qualify for a Chemist position. We also provided additional research showing that Chemist positions frequently call for an individual with a degree in Chemistry or Polymer Engineering.

Returning to the port-of-entry with these materials, the applicant was approved for TN visa status as a Chemist for a three year period.

The non-petition based fee increase would affect Mexican citizens filing TN visa applications and spouses and children requiring TD visa stamps. The DOS is raising the visa application fee for these types of visas from $131 to $140.

Petition-based visa application fees will be increasing significantly. For example, application fees for H1B, L, O, P, Q and R visas will increase to $150; for E visas to $390 (included although not a petition-based visa); and for K visas to $350.

This is only a proposed rule. The fee increases may not go into effect until after a sixty day commentary and review period.

This individual received a job offer from a financial services company where he would be involved in the design, development, installation, maintenance, performance tuning, and configuration of Oracle and MS SQL server database software, systems and technologies. Due to his prior denial, he contacted our firm to handle his case.

Upon review of his job description and credentials, we concluded that the position offered fell under the Computer Systems Analyst TN category and this individual qualified for this TN category. We assisted the employer in preparing an employer support letter. We also prepared a legal brief that addressed the two potential issues with the case: (1) relevancy of the degree; and (2) position eligibility. We cited the legacy INS Memo, which stated that generally only a related degree in the field is required for TN, and the Occupational Outlook Handbook (“OOH”), in support of our argument that the client qualified for TN status as a Computer Systems Analyst based on his master’s degree in Information Systems. In addition, we submitted documentation from the U.S. Department of Education confirming that the client’s MS degree (from the University of Phoenix) was issued from an accredited institution. We also referred again to the OOH, and also to job postings, to confirm that Computer Systems Analysts work with Oracle and MS SQL server database software, systems and technologies.

We accompanied the client to the border to present the TN application. Upon review of the application materials, and an interview with the client, U.S. Customs and Border Protection issued the client a TN I-94 valid for 3 years.

Twenty-four posts already require the new form including the following in Mexico: Ciudad Juarez, Hermosillo, Matamoros, Monterrey, Nogales, Nuevo Laredo, and Tijuana. As many consulates in Mexico have already implemented the new  DS-160 form within the past year, many Mexican TN visa applicants are familiar with the form. We recommend that all visa applicants review the appropriate U.S. consulate’s website to determine which visa application form is required. Individuals can review the new DS-160 form here.  Additional information on the new form and a current list of U.S. Embassy and Consulate locations requiring it are available here.

This new rule does not apply to citizens of Canada. Unlike citizens of Mexico, Canadian citizens are generally exempt from the visa stamp requirement, and may obtain their TN visa status at a U.S. port-of-entry and do not need to file for a TN visa stamp at a U.S. consulate.